Category Archives: Law: Constitutional Law

Two Reporters Told to Erase Scalia Tapes. Justice Scalia gave a speech today in which he said “The Constitution of the United States is extraordinary and amazing. People just don't revere it like they used to.” Meanwhile, a federal Marshal was ordering two reporters to erase tapes of the speech, even though there had been no notice of a no-taping policy. In one case she went so far as to grab a digital recorder from a reporter who, unfortunately, whimped out:

The reporter initially resisted, but later showed the deputy how to erase the digital recording after the officer took the device from her hands. The exchange occurred in the front row of the auditorium while Scalia delivered his speech about the Constitution.

I'm curious as to what law authorizes a federal marshall — or any police officer — to enforce such a policy at a Justice's request (as opposed to the property owner's, where it might in some states be a form of trespass) outside federal property anyway. (There may well be one, but not doing criminal law, I don't know of it.)

As an administrative lawyer I'd especially like to know how formalist Scalia would explain that when he fails to give proper notice, his new no-taping policy (an addition to his longstanding no-cameras policy) is nonetheless binding on all present. I'm certain he would not apply this nunc pro tunc reading to most other contracts. Indeed, Justice Scalia is the Justice most strongly identified with questioning the government's right to take any retroactive decisions that harm well-founded expectations, e.g. in his concurrence in Bowen v. Georgetown University Hospital.

And, oh yes, since this is a (small) Takings, it's a Fifth as well as a First Amendment violation, isn't it?

Yes, it's a lovely Constitution. Could its current disrepute have anything to do with the nature and quality of its custodians?

Rare it is that I am in substantial agreement with any Volokh Conspirator. But with the exception of the next-to-last paragraph, I think Jacob Levy's item on the Pledge captures my feelings pretty well. Where we part company is the idea that the government could reasonably request, much less demand, a citizenship oath at 18.

That said, I guess I have to admit that we already a de facto oath requirement at majority in most states—for those who wish to vote. I've had to swear to preserve and protect not just the Constitution of the USA, but that of two different states in order to exercise my franchise. Is that in keeping with a vision of the Republic that situtates sovereignty in 'We the People?' I can see arguments on both sides of that one.

And since, as it happens, I think that state and federal constitutions are a Good Thing, even when imperfect, I'm certainly not about to make an issue of it.

For a good roundup of the current state of play on crypto tech & politics, see The Importance of…: A Race the FBI Can't Win: The Increasingly Asymmetric Costs of Wiretap Surveillance vs. Wiretap Avoidance. I'd write more on this — I used to write very long articles about it, but I have to run off ot the airport to catch my plane back to Miami….

The following words, written by Justice Scalia for seven members of the Supreme Court in today's Crawford v. Washington decision, will — if taken seriously — lob a hand grenade into many regions of Constitutional interpretation. As one who believes that balancing tests are indeed swallowing the Constitution (this is deep into the territory where left libertarian-leaning people meet right-libertarian leading people — a zone I only frequent rather than residing in) I think this has the potential to be a wonderful and transformative tonic for much of what ails constitutional doctrine:

By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh’s—great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear.

Of course, it could also lead to disaster if the bright lines get drawn in the wrong places…

It will be absolutely fascinating to see whether and how this principle is applied in all the upcomong cases in which the government claims various exceptions to ordinary rules of criminal and constitutional procedure in order to fight the War on Terror. (I can already imagine an out for the monarchist tendency on the Court, however: treat something as an 'exception' or a 'special case' and it's not a 'balancing' issue.)

Incidentally, the underlying decision in Crawford — that the Confrontation Clause should be interpreted strictly and thus should exclude most types of hearsay — is pretty incendiary too, as it overrules almost 25 years of contrary Supreme Court precedent, if not more.

Oh, I love this: Kieran Healy of Crooked Timber has an idea — “High Concept for a Horror movie: The Constitution really is a living document.”

Bet you someone actually does this as a short.

Longtime (in internet years) readers will recall my interest in the validity of the 'do-not-call' registry. The 10th Circuit, having vacated the lower court's injunction, has now issued its ruling on the merits, and it upholds the registry. A quick look suggests this case doesn't break new ground. It doesn't try to untangle the confused Supreme Court jurisprudence on content discrimination. Rather, it just says that what the government did here is reasonable (and more likely to be effective than the rule struck down in Hudson Valley, the newsracks case) and that the action is permitted by the statute.

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